AERONCA, INC., Petitioner,
NATIONAL LABOR RELATIONS BOARD, Respondent.
Argued May 7, 1981.
Decided June 4, 1981
James K. L. Lawrence, Cincinnati (George E. Yund, Frost & Jacobs, Cincinnati, Ohio, John R. Wester, Charlotte, N. C. (Fleming, Robinson, Bradshaw & Hinson, Charlotte, N. C., on brief), for petitioner.
Judith Ann Dowd, N. L. R. B., Washington, D. C. (William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, John D. Burgoyne, Asst. Gen. Counsel, Washington, D. C., on brief), for respondent.
Before HAYNSWORTH, Senior Circuit Judge, ERVIN, Circuit Judge, and RAMSEY*
, District Judge.
HAYNSWORTH, Senior Circuit Judge:
Aeronca, Inc. petitions for review and the Board cross-applies for enforcement of the Board’s order and finding that the company violated § 8(a)(1) and (5) of the Act by unilaterally discontinuing its practice of giving its employees Christmas turkeys. Because we find that the union waived the company’s duty to bargain about discontinuance of the turkey bonus, we deny enforcement of the Board’s order.
Since at least 1952 the company had maintained a practice of giving each employee, including managers and supervisors, a Christmas turkey. The practice continued after the union was certified in 1974 as the exclusive bargaining representative of the company’s production and maintenance employees.
The parties’ first collective bargaining agreement included a broad zipper clause1
and an arbitration clause.
At the beginning of negotiations for the 1976 collective bargaining agreement, the union submitted a 72-page contract proposal. The union proposed the addition of a maintenance-of-benefits provision2
and a corresponding modification of the zipper clause. The company objected to the length of the proposal, and union representatives subsequently caucused to reduce its length. The turkey bonus was mentioned during that caucus, but the union decided to drop the maintenance-of-benefits provision because the employees had regularly received the turkeys. In the protracted negotiations that followed, the turkey bonus was never mentioned, and without discussion the zipper clause was carried over verbatim from the prior contract and the proposed maintenance-of-benefits provision was not included.
In December 1976 poor financial conditions prompted the company to institute a general austerity program. As part of that program, the company decided to discontinue the turkey bonus. When the employees were not given turkeys on Christmas 1977, the union filed a grievance. The company did not consider the turkey bonus a grievable matter, but submitted to arbitration when the union filed the present unfair labor practice charge and the Board’s regional director informed the company that a complaint would issue if the company refused to arbitrate.
After a hearing the arbitrator denied the union’s turkey bonus grievance. The Board then proceeded on the General Counsel’s complaint. It concluded that the arbitrator’s decision did not meet the standards of the Spielberg3
doctrine and thus did not warrant deference. On the merits, the Board concluded that the union had not waived its right to bargain over the discontinuance of the turkey bonus.
We need not decide whether the Board abused its discretion in declining to defer to the arbitrator’s decision, because the Board’s decision on the merits is inconsistent with our holding in NLRB v. Southern Materials Co., 447 F.2d 15 (4th Cir. 1971). It is sought to distinguish this case from Southern Materials and the relevant Board precedents4
on the ground that Aeronca continued the Christmas turkey bonuses after having entered the first agreement with the union. We find this an insufficient basis for not following our earlier precedent. The first contract did not obligate the employer to give the Christmas turkeys, and the negotiations leading up to the second one clearly indicate a union abandonment of any attempt to make giving of the turkeys obligatory.
Enforcement of the Board’s order is denied.
Honorable Norman P. Ramsey, United States District Judge for the District of Maryland, sitting by designation
The parties acknowledge that during the negotiations which resulted in this agreement each had the unlimited right and opportunity to make demands and proposals with respect to any subject or matter not removed by law from the area of collective bargaining, and that the understandings and agreements arrived at by the parties after the exercise of that right and opportunity are set forth in this Agreement. Therefore, the Company and the Union, for the life of this Agreement, each voluntarily and unqualifiedly waives the right, and each agrees that the other shall not be obligated to bargain collectively with respect to any subject or matter referred to or covered in this Agreement, or with respect to any subject or matter not specifically referred to or covered in this Agreement, even though such subject or matter may not have been within the knowledge or contemplation of either or both of the parties at the time that they negotiated or signed this Agreement
The provision stated that “any and all benefits that the employees and/or Union are now receiving which are not specified in this Agreement shall continue during the term of this Agreement.”
Spielberg Manufacturing Co., 112 NLRB 1080 (1955)
Bancroft Whitney Co., 214 NLRB 57 (1974); Radioear Corp., 199 NLRB 1161 (1974)
12/23/2009: We’ll post what we learn:
From: “James Bean”
Date: December 23, 2009 7:56:54 AM PST@uoregon.edu>
Subject: RE: FPC and the Provost
This is a classic example of email as a poor medium for disucussion. I will be happy to meet with whatever members of the faculty wish to discuss this topic. The amount of misinformation being tossed around here is amazing. Until that meeting happens, please have a happy holiday.
This is in regard to 2 motions Frank Stahl has put forward to the Senate, regarding Provost Bean’s refusal to share information about his final tenure and promotion decisions with the Faculty Personnel Committee faculty members who advise him on those decisions. Yup, you can’t let the faculty know who gets tenure – and you certainly can’t tell them why!
THE MOTION: With respect to procedures for promotion and/or tenure, the Senate directs the Provost as follows: At the time that candidates for promotion and/or tenure receive notice of the Provost’s decision, the Provost shall notify the Faculty Personnel Committee of actions taken with respect to their recommendations.
MOVED: The Provost shall deliver copies of the 2009 Tenure and Promotion decision letters to the Chair of the 2008-09 FPC. The 2008-09 Chair of the FPC is requested to add an amendment to her annual report to indicate whether the Provost’s letters disagree with the FPC recommendations and, if so, in what manner and in how many cases.
12/23/2009: Here’s an interesting story in insidehighered.com about faculty hiring independent auditors to figure out the actual financial position of their universities. Apparently Frances Dyke is not the only VP for Finance with negative credibility. Here at UO we hear that Brad Shelton is still trying to disentangle the mess that Frances has allowed to build up over the years. Unfortunately Brad has no staff, and Frances still has all the power. Why hasn’t Larviere fired her yet? Rumor is that a few weeks back someone found $7 million tucked away somewhere, unaccounted for and unknown to Frances. Merry Christmas. Another part of Moseley’s rainy day fund, perhaps?
12/21/2007: Oregon State economist William Jaeger has produced an interesting report on Oregon’s taxes, demonstrating that they are well below the national average. Is this a good thing or a bad thing? Also interesting is this study on happiness by state (of residence, not of mind). Oregon is #30.
12/21/2009: Sent to Doug Park, UO’s public records chief, after several unsuccessful attempts to get a response from UO’s AAEO Director Penny Daugherty. As discussed here, UO’s current plan is way out of date.
I’m still unable to get a response from Penny on when UO’s affirmative action plan will be updated. So this is a public records request for a copy of the current working draft of the “2009-2010” AA plan.
I ask for a fee waiver on the basis of public interest. As you know many UO departments are now entering the hiring season and UO does not have a current, valid AA plan in place, despite federal regulations which require this and despite Penny’s 2007 agreement with the Office of Federal Contract Compliance Programs that she would comply with this rule.
I plan to post the draft version of this plan at http://uomatters.com to serve as interim guidance for the university, until Penny gets her act together.
Thanks for your assistance,
12/21/2009: Here’s an interesting report on what states and universities can do to “improve college access and success for underrepresented students.” UO’s plan – dump $2 million a year on Charles Martinez and his do nothing Office of Institutional Equity and Diversity so they can prepare reports on plans – does not make their shortlist:
NCSL’s The Path to a Degree: A Legislator’s Guide to College Access and Success contains six briefs written for state legislators that provide an overview of key issues, discuss research findings, and offer examples of specific state action that can improve college access and success for underrepresented students.
The brief on college planning strategies highlights efforts by states such as Delaware, Kentucky and Washington. Policies in California, Colorado and Texas regarding high school standards, graduation requirements, and college-ready assessments are examined in the brief on college and workforce readiness. Indiana, Massachusetts and Oklahoma are featured in the brief on financial aid strategies to improve college affordability. And in the brief on college success strategies, Arkansas, Illinois and South Carolina are highlighted as states supporting evidence-based college success programs at their higher education institutions.
12/17/2009: Anyone who has been in UO classroom recently – particularly an honors class – will be struck by how few male students there are. Girls are doing better and better in HS, boys not so much. Apparently some selective colleges have been giving boys an advantage in admissions, to try and reach sort of gender balance. Now the US Council on Civil Rights has issued supoenas to try and learn more about the extent of this practice.
The motivations for this affirmative action for boys must get pretty interesting. Lets assume that in general girls would like to go to a college with a reasonable number of high quality boys, but that there is a shortage of these good boys. So more good boys allows a given school to attract better girls and charge them higher tuition. But boys may prefer to be at a school where they are as smart as the average girl. So affirmative action is not the ideal solution – colleges want good boys, not bad ones. It would be better for colleges to target good boys. Tuition discounts for good boys is one solution, but that’s apparently illegal – the discounts have to be gender neutral, so you also attract even higher quality girls, and still have the imbalance.
So instead we have college sports. Boys love them. Another solution would be to add academic programs that good boys like, such as engineering. Part of the problem with boys is that they mature later. Maybe encourage them to take a year or two off before college? Any other ideas?
12/17/2009: Here’s a long and interesting article from Insidehighered.com on UW Provost Phyllis Wise’s decision to accept an offer to join the Nike board. I’m not a Nike basher – the way to improve the lives of low wage workers in poor countries is to buy what they make, not boycott it – but the time commitment is an issue. Someone already receiving a large salary from taxpayers and students should keep their focus on the academic issues they are paid to work on. With stock options, the Nike job pays a hundred thousand a year or so. Administrators typically argue that these board positions are a way to network with rich potential donors – but Wise refuses to discuss donating this to charity. Former UO President Frohnmayer was (and is) on the Umpqua Bank board, and also apparently kept the $50,000 or so he earned. We don’t know how many current UO administrators are doing this.
12/16/2009: UO is hiring a new Vice President for Development, and a new Vice Provost for Enrollment Management. We have hired search firms for both positions and posted public announcements of the openings on the UO website and in the Chronicle. This marks the second and third time in recent months that the administration has followed affirmative action rules in hiring a senior administrator – making the refusal to do this with OIED VP Charles Martinez even more striking. However AAEO Director Penny Daugherty still has not updated our AA plan, making the claim at the bottom of these ads, that “The University of Oregon is an AA/EO/ADA institution and is strongly committed to cultural diversity.” rather strange. Strongly committed, but not able to complete our AA plans on time, if ever, and unwilling to conduct an affirmative action compliant search for our Vice President for Diversity.
12/15/2009: The Chronicle has a long article on the increase in the unionization of adjunct faculty:
Aware that adjuncts are finding reasons for wanting to organize, unions are wooing them—in no small part because the numbers of tenure-track faculty members that can be added to union rolls is shrinking. “If you’re going to organize faculty, you’ve got to organize contingent faculty,” says Mr. Berry. “They’re the majority of the faculty now.” … Since the middle of last year, the American Federation of Teachers has organized eight contingent faculty unions, representing more than 4,000 instructors (not including graduate students and postdocs). … Although adjuncts are “receptive to unionization,” Ms. Bannan says, “the hard work is in identifying them.” Adjuncts are often poorly counted by administrations and are difficult to round up because they often go from campus to campus to work. Once organizers get beyond that barrier, says Mr. Berry, the labor specialist at Urbana-Champaign, “it’s never difficult to convince contingent faculty to join a union. Getting to an election is basically a matter of finding the people.”
12/14/2009: From the Seattle Times:
University of Washington Provost Phyllis Wise is facing growing criticism from students, faculty and lawmakers for taking a seat on the corporate board of Nike, which last year signed a contract with the UW worth a minimum $35 million to the university.
12/10/2009: From the Chronicle: “At public research universities, the average presidential salary is $412,981, the average salary of a full professor is $113,248, and the ratio is 3.64.” At UO?
The union campaign has already had one positive effect – the administration’s new use of “Colleagues” as the salutation in their periodic emails to the faculty, instead of their customary “You unorganized grabastic pieces of amphibian shit”.
I can’t understand why the Provost left UO Matters off his list of approved websites though – aren’t you supposed to be neutral, Jim?
Actually, his http://hr.uoregon.edu/er/unionization/ site has some good basic info, check it out.
From: UO Provost Update
Subject: Attempted unionization
Date: Dec 3, 2009 8:59:44 PST
In our continuing efforts to bring you information regarding attempted unionization of faculty and unclassified employees at UO we have constructed a website at: http://hr.uoregon.edu/er/unionization/
The website currently contains more information on who is affected in these unionization efforts and a summary of the overall process. It will be updated regularly with new information and communications.
Unions are required by law to submit annual financial reports and constitutions to the Department of Labor, which makes them available to the public. We have placed recent annual financial statements and constitutions of AAUP and AFT on the site above.
Other websites you may find valuable are:
12/7/2009: Interesting op-ed from insidehighered.com on the UC systems troubles. The claim is that the universities are exaggerating the extent of the problem:
Even with the revelation that many of the top earners are administrators and that there are now more administrators in the UC system than faculty members, many tenured professors have sided with the administration because it is much easier to attack the state for all of the UC’s problems. By blaming the state and the anti-tax Republicans, there is a clear enemy and an easy narrative. Moreover, by placing the onus of responsibility on the state, the university does not have to look at its own internal problems.
Sound familiar? It’s worth a read. The author is a UC faculty member and union leader.